Hiram & Piran

[2024] FedCFamC1A 73

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hiram & Piran [2024] FedCFamC1A 73

Appeal from:

Hiram & Piran [2023] FedCFamC2F 1330

Appeal number:

NAA 314 of 2023

File number:

DUC 438 of 2020

Judgment of:

ALDRIDGE J

Date of judgment:

7 May 2024

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Where the parties agreed the primary judge erred – The Court must be satisfied the primary judge has erred – Double counting of a matrimonial debt – Counting of assets not included in the balance sheet – Asserted error established – Appeal allowed – Proposed orders are just and equitable – Consent orders made in re-exercise of discretion – Costs certificates granted.

Legislation:

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:

Bhatnagar & Riju [2018] FamCAFC 144

Heidari & Ebadi [2020] FamCAFC 316

Number of paragraphs:

13

Date of last submissions:

16 April 2024

Date of hearing:

Determined in chambers on the papers

Counsel for the Appellant:

Mr Alexander

Solicitor for the Appellant:

Campbell Paton & Taylor

Counsel for the First Respondent:

Dr Barnett SC

Solicitor for the First Respondent:

Blackwell Short

The Second Respondent:

Self-represented litigant

ORDERS

NAA 314 of 2023
DUC 438 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HIRAM

Appellant

AND:

MS PIRAN

First Respondent

MS CORNETT

Second Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	7 MAY 2024

THE COURT ORDERS BY CONSENT THAT:

1.Appeal NAA 314 of 2023 is allowed.

2.Orders 1, 2, 3, 4 and 5 made by the primary judge on 18 October 2023 are set aside.

3.In lieu thereof:

(a)The first respondent shall pay to the appellant on or before the expiry of 75 days from the date of these orders, the sum of $143,929 by way of property settlement.

(b)Simultaneous with the payment in Order 3(a) above, the first respondent shall refinance the mortgage secured over B Street Suburb C (“the home”) into her sole name and the appellant shall transfer to the first respondent his right, title and interest in the home being the whole of the land in folio identifier…

(c)The first respondent shall indemnify the appellant with respect to any sum due and owing, including interest, to the second respondent, noting that she has already paid the sum of $201,000.

(d)In the event the sum in Order 3(a) is not paid by the due date, or the first respondent has not complied with Order 3(b), the appellant and first respondent shall do all things including appointing a selling real estate agent and conveyancer and cause the home to be listed for sale by private treaty within 100 days of the date hereof.

(e)Upon sale of the home the proceeds are to be disbursed in the following priority:

i.In payment of the real estate agent’s costs and commission;

ii.In payment of conveyancing costs;

iii.In a sum sufficient to discharge the mortgage secured over the home; and

iv.In payment of the net pool of assets so that the appellant receives 44 per cent and the first respondent receives 56 per cent.

4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5.The first respondent is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.

AND THE COURT NOTES THE AGREEMENT OF THE PARTIES THAT:

A.In relation to the amounts owed by the appellant and first respondent to the second respondent:

i.The first respondent informs the Court that she has already paid $201,000 to the second respondent, which payment is acknowledged by the second respondent;

ii.The second respondent releases the appellant in relation to any and all remaining amounts owing by him to her;

iii.The remainder of the debt is otherwise confirmed and acknowledged by the first respondent; and

iv.The first respondent indemnifies the appellant in relation to any amounts owing to the second respondent, including in relation to interest.

B.The time for compliance with Order 1 made on 27 July 2023 shall take effect on or before the date that is 75 days after the date of the making of these orders, simultaneously with Order 3(a) and 3(b).

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hiram & Piran has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

INTRODUCTION

1. On 18 October 2023 a judge of the Federal Circuit and Family Court of Australia (Division 2) made final property settlement orders in proceedings between Mr Hiram, the appellant husband (“the appellant”), Ms Piran, the first respondent wife (“the first respondent”) and Ms Cornett, the first respondent’s aunt (“the second respondent”). The primary judge divided the net property of the spouse parties 44 per cent to the appellant and 56 per cent to the first respondent.

2. By way of a Notice of Appeal filed 14 November 2023, the appellant sought to appeal Orders 1, 3, 4, 5(d) and 5(f) made by the primary judge. The Notice of Appeal set out five grounds of appeal.

3. The appeal was listed for hearing on 22 April 2024. On 16 April 2024, the parties filed joint written submissions indicating they had reached a consent position, along with a minute of consent order. The parties agree the primary judge erred and that the Court should re-exercise the discretion to make the orders set out in the minute of consent order.

4. Before making such orders, it is necessary that the Court hearing the appeal is satisfied the primary judge has indeed erred (Bhatnagar & Riju [2018] FamCAFC 144; Heidari & Ebadi [2020] FamCAFC 316).

   THE APPEAL

5. Grounds 1 and 2 were formulated as follows:

   1.        The primary Judged erred in fact by making mathematical errors in that:

   a.Consistent with consent orders and declarations made on 25 May 2022, the primary Judge found that [the second respondent] was owed a debt of $201,000, which debt the primary Judge found was a matrimonial debt to be taken into account in the property settlement;

   b.The primary Judge found the net pool to be $493,495, after including the debt to [the second respondent] of $201,000 as a matrimonial debt (at [41])

   c.(it ought be noted the primary Judge’s calculation of the net pool included minor mathematical errors the subject of ground 4 such that the net pool ought to have been found to be $507,495);

   d.But after calculating the cash payment necessary to be made to the [appellant] from the net pool, the primary Judge then deducted from this amount half the debt to [the second respondent], which had already been taken into account as a matrimonial debt at [41];

   e.Accordingly, the debt to [the second respondent] was applied twice to the [appellant’s] property settlement entitlement, which reduced the overall cash payment the [appellant] was to receive by $100,500, being half the amount of the debt.

   2.The Orders of the primary Judge are not just and equitable within the meaning of s 79(2) of the Act and do not reflect the primary Judge’s reasons in that:

   a.The primary Judge found that a division of property of 44 per cent to the [appellant] was a just and equitable outcome (at [72] and [77]);

   b.The effect of Order 1 when taking into account Order 3 is that the [appellant] shall receive a division of property of about 24 per cent of the nett pool of assets;

   c.The Orders made are inconsistent with the primary Judge’s reasons (at [72]);

   d.It necessarily follows that the Orders made cannot have been considered by the primary Judge to be just and equitable and accordingly should not have been made and ought to be set aside.

6. By way of background, in or around 2017 the parties apparently entered an agreement for the appellant and first respondent to build a granny flat on their property in which the second respondent would live. The second respondent was to contribute to the cost of the building with such contributions to be repaid upon the second respondent no longer occupying the granny flat. On 25 May 2022 a consent declaration was made that the appellant and first respondent jointly owed the second respondent $201,000.

7. The $201,000 was included by the primary judge as a liability in calculating the asset pool of the spouse parties. The net assets were therefore found to be $493,495. The husband’s share was, accordingly, 44 per cent of that sum, namely $217,138. As the husband was to retain assets valued at $79,368, he was to receive the further sum of $137,770.

8. Order 1 of the orders made 18 October 2023 provided for the first respondent to make a payment of $137,770 to the appellant to effect the overall property distribution. That accorded with the above analysis.

9. However, Order 3 required each of the spouse parties to pay the second respondent $100,500 within 75 days. Those sums had already been taken into account in determining the net assets of the parties and the share of them that the husband was to receive. The effect of this order was that the husband has been charged the payment of his share of the debt to the second respondent twice. This has the effect that the orders see the husband receive much less than 44 per cent of the net property.

10. The asserted error has been established and the appeal must be allowed.

11. In addition, when identifying the assets to be retained by the appellant, the primary judge included two assets which were not included in the balance sheet when calculating the net assets.

12. The parties have agreed on orders which rectify the above errors. I am satisfied that it is just and equitable to make them.

13. It is an error of law for orders not to reflect the intention of the court. The above errors were not induced by the conduct of the parties. It is appropriate that there be no order as to costs and that each party receive a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       7 May 2024